1 1 1 AFIF 2004 Annual Conference May 2004 The Outcome!... Siemens v Schenker Peter McQueen, Partner, Blake Dawson Waldron Lawyers

2 Overview Facts Court Findings Future Steps

3 Facts Agreement among Siemens and Schenker companies Siemens Group companies - Siemens Germany and Siemens Australia Schenker Group companies - Schenker Germany and Schenker Australia Direct Traffic agreement for transport of goods and provision of related services - overarching and standing

4 Facts Agreement among Siemens and Schenker companies Schenker Germany agreed to carry goods from Siemens Germany factory in Berlin to bonded warehouse of Schenker Australia outside perimeter of Melbourne airport Schenker Germany and Schenker Australia agreed to provide all transport and related services Direct Traffic agreement, with no limitation of liability provision, was supplemented by Clause 4 of FIATA Neutral AWB issued by Schenker Germany

5 Facts Time and place of damage to goods After arrival at named airport of destination Beyond perimeter of airport Within customs control Prior to delivery to consignee During road carriage to bonded warehouse

6 Facts Airport of departure Berlin - Tegel Airport of departure Berlin - Tegel Airport of destination Melbourne Airport of destination Melbourne Place of delivery Bonded Warehouse Place of delivery Bonded Warehouse

7 Facts Cause of damage Negligence of Schenker Australia, subcontractor of Schenker Germany, performing road carriage Liability exposure Value of claim AUD1,700,000 Limitation of liability, if applicable, AUD140,000 (Clause 4 of FIATA Neutral AWB)

8 Facts Clause 4 of FIATA Neutral AWB Except as otherwise provided in carriers tariffs or conditions of carriage, in carriage to which the Warsaw Convention does not apply, carriers liability shall not exceed USD20... per kilogram of goods... damaged...

9 Court Findings Airport of departure Berlin - Tegel Airport of departure Berlin - Tegel Airport of destination Melbourne Airport of destination Melbourne Place of delivery Bonded Warehouse Place of delivery Bonded Warehouse Type of carriage Liability regime not Convention carriage Convention carriage Convention Clause 4 of FIATA Neutral AWB

10 Court Findings By a 3 to 2 majority Clause 4 did apply to road carriage and was not restricted to air carriage or airport to airport carriage Clause 4 did apply after goods collected at airport of destination and up to time when delivery allowed by laws at place of destination outside airport perimeter FIATA Neutral AWB including Clause 4 continue to have contractual application after goods were collected from airport of destination Note findings of Court minority

11 Court Findings Airport of departure Berlin - Tegel Airport of departure Berlin - Tegel Airport of destination Melbourne Airport of destination Melbourne Place of delivery Bonded Warehouse Place of delivery Bonded Warehouse Type of carriage Liability regime not Convention carriage Convention carriage Convention Clause 4 of FIATA Neutral AWB

12 Future Steps Review conditions of contract for application beyond airport to airport carriage

13 Future Steps Review conditions of contract of FIATA Neutral AWB and IATA Neutral AWB

14 Review combined transport / door to door / Express AWB Future Steps